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Madhya Pradesh High Court · body

2013 DIGILAW 121 (MP)

Ram Kripal v. Veerbhadra

2013-01-24

R.S.JHA

body2013
JUDGMENT : The appellant/defendant has filed this appeal being aggrieved by the judgment and decree dated 13-9-1995 passed by the 4th Additional District Judge, Rewa, in Appeal Case No. 15-A/1993 whereby the judgment and decree dated 22-2-1991, passed by Civil Judge Class I, Mauganj, District Rewa, in Case No. 198-A/1991, has been affirmed. 2. The brief facts giving rise to the present appeal are that the respondents alongwith their mother, Smt. Sumitra wife of Kaushal Prasad filed a civil suit for declaration in respect of Khasra No. 192, area 0.69 decimal situated in Village Virha Gopal, Tehsil Hanumana, District Rewa, on the ground that the land, in question, initially belonged to one Omkarnath who died leaving behind only one issue, i.e., Sumitra, who had executed a Will in favour of the respondent Nos. 1, 2 and 3 and that they are in possession of the said land since then but the appellant on false averments has got the land mutated in his name and was attempting to interfere in their possession. The respondent Nos. 1 to 3, therefore, sought a decree for declaring the proceedings of the Revenue Authorities dated 22-11-1982 passed in Case No. 168-B-21/78-79 as null and void. 3. Notice of the suit was issued to the appellant by the Trial Court on 11-7-1985 for taking up the matter on 6-12-1985 on which date the Court proceeded ex pane against the appellant by taking note of the fact that the notice has been served by affixation and passed an ex pane judgment and decree on 22-2-1991. The appellant being aggrieved, filed an appeal against the aforesaid judgment and decree of the Trial Court which has also suffered dismissal by the impugned judgment and decree passed by the Lower Appellate Court, dated 13-9-1995. Hence, this appeal. 4. This Court by order dated 17-2-2010 has admitted this appeal on the following substantial questions of law :- "Whether the Courts below have committed grave error in holding that the summons of the suit was duly served on the appellant when the same was not sent for service alongwith copy of the plaint, in compliance of the mandatory provision of Order 5 Rule 2 of the CPC. If so then its effect ?" 5. If so then its effect ?" 5. It is submitted by the learned Counsel for the appellant that the Courts below have proceeded ex pane against the appellant by treating the notice to have been served on the endorsement of the process server who has made a note on the notice that the appellant was not available in his house, his wife was sought to be served with the notice who refused to accept the same and, therefore, the notice was affixed. It is submitted that the service of notice on the appellant is in fact contrary to the provisions of Order 5 Rules 17 and 19 of the Code of Civil Procedure inasmuch as service of notice by affixation could only be effected in case the requirement of Rule 17 were fulfilled and completed and the service could have been declared to have been effected only after obtaining an affidavit of the process server or examining him in accordance with Rule 19 of Order 5 of the Code of Civil Procedure. It is submitted that the Trial Court has failed to do so and, therefore, the ex parte decree passed by the Trial Court and affirmed by the Lower Appellate Court deserves to be set aside. 6. It is also contended by the learned Counsel for the appellant that a copy of the plaint alongwith the notice was also required to be attached but as the same was not done, therefore, the service was not proper and could not be said to be in accordance with law in view of the mandatory provisions of Order 5 Rule 2 of the Code of Civil Procedure. 7. The learned Counsel appearing for the appellant/defendant relied upon the decision of this Court rendered in Sitaram Vs. Kalawati, 1986 MPLJ 67 , Charanlal Patel Vs. Smt. Kavita Jain and another, AIR 1998 MP 16 , Suresh Kumar Vs. Godavaribai, 1991 MPLJ 843 , State of Jammu & Kashmir and others Vs. Haji Wall Mohammed and others, AIR 1972 SC 2538 and The Commissioner of Income Tax, West Bengal III, Calcutta and others Vs. Ramendra Nath Ghosh etc., 1972 Tax Law Reporter 1104 in support of his submissions. 8. Godavaribai, 1991 MPLJ 843 , State of Jammu & Kashmir and others Vs. Haji Wall Mohammed and others, AIR 1972 SC 2538 and The Commissioner of Income Tax, West Bengal III, Calcutta and others Vs. Ramendra Nath Ghosh etc., 1972 Tax Law Reporter 1104 in support of his submissions. 8. The learned Counsel appearing for the respondents, per contra, submits that notice of the suit was issued by the Trial Court in accordance with law and as the appellant was not found at home, notice on his wife was sought to be served by the process server in view of the provisions of Order 5 Rules 15 and 17 of the Code of Civil Procedure but as she refused to accept the notice, it was duly affixed and a report to that effect was submitted before the Court. It is submitted that in view of the aforesaid facts and circumstances both the Courts below have rightly held the service to be complete and in accordance with law in view of Rule 17 of Order 5 of the Code of Civil Procedure and in such circumstances no fault can be found with the impugned judgment and decree passed by the Courts below and no substantial question of law arises for adjudication in the present appeal. 9. The learned Counsel for the respondents further submits that the notice was sent alongwith a copy of the plaint as is evident from the seal affixed on the same, however, as the appellant was not available in the house and as his wife refused to accept the notice, therefore, the summons was affixed and in such circumstances non-affixation of the plaint would not make the service of notice violative of Order 5 Rule 2 of the Code of Civil Procedure. 10. I have heard the learned Counsel for the parties at length and perused the record of the case. 11. 10. I have heard the learned Counsel for the parties at length and perused the record of the case. 11. From a perusal of the provisions of Order 5 Rule 15 of the Code of Civil Procedure, it is clear that where the defendant is absent from his residence at the time when service of summons is sought to be effected on him and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of summons on his behalf, service of summon could be made on any adult member of his family whether male or female who is residing with him. Order 5 Rule 17 provides for the contingency where the defendant either refuses to accept the service or cannot be found and lays down that where the defendant is absent from his residence at the time when service is sought to be effected on him and there is no likelihood of his being found at the residence within a reasonable time and there is no other person on whom service can be made or he refuses to accept the summon, the serving officer shall affix a copy of the summon on the door or other conspicuous part of the house in which the defendant ordinarily resides and the server shall thereafter return the original to the Court from which it was issued with the report endorsed thereon stating that he has so affixed the copy, the circumstances under which he did so and the name and address of the person, if any, by whom the house was identified and in whose presence the copy was affixed. Order 5 Rule 19 of the Code of Civil Procedure lays down that where the summon is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer, on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit. 12. 12. From a conjoint reading of the aforesaid three rules it is apparent that where the serving officer is unable to serve the defendant as he is not available at his residence and if there is no likelihood of his being found at the residence within a reasonable time, he may serve the notice on any other adult member of his family whether male or female who resides with him and in case the defendant refuses to accept the notice or in his absence such other member also refuses to accept the notice, the serving officer may affix a copy of the notice on the outer door or on some conspicuous part of the house in which the defendant ordinarily resides and return the original to the Court from which it was issued with an endorsement thereon or affixed thereto stating that he has so affixed the copy, the circumstances under which he did so and the .address of the person by whom the house was identified and in whose presence the copy was affixed. The provisions of law specifically. Rule 19 of Order 5 further provides that in case such summon is returned under Rule 17, the Court must obtain an affidavit of the serving officer, and may if necessary also examine him and in case no such affidavit is filed, must examine the serving officer on oath and make such further enquiry as it deems fit regarding service of summon on the defendant and thereafter must declare, either that the summon has been duly served or pass such further orders regarding service as it thinks fit. 13. The aforesaid interpretation of the provisions of Order 5 Rules 15, 17 and 19 has also been made before this Court in the case of Suresh Kumar (supra), in Paragraph 6 in the following terms :- "6. Rule 19 of Order 5, CPC provides that if the summons is returned under Rule 17, the Court shall if the report is not verified by the affidavit of the serving officer, examine the serving officer and make such further enquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit. Now in the instant case, it is clear that the process-server has not stated in the report that although the defendant was absent from his residence at the time of the service, but there was no likelihood of his being found at the residence within a reasonable time. In the absence of this report of the process-server, the service could not be made on an adult member of the family. As such, one of the ingredients for serving the summons on the father of the present applicant being absent, it cannot be said that the provisions of Rule 15 of Order 5, CPC were complied with. Similarly, when the father of the defendant refused to accept the service, then the procedure as provided under Rule 17 of Order 5, CPC had to be adopted. But it appears that neither the provisions of Rule 15 of Order 5 have been complied with in the instant case, nor that under Rule 17 of Order 5 have been pressed into service by the bailiff and consequently the Court has also not followed the procedure provided under Rule 19 of Order 5, CPC. Shri Agrawal, learned Counsel for the applicant has cited various authorities in support of his argument but in view of the clear provisions of law as stated above, I need not burden this order with the discussion of the aforesaid authorities." In the case of Sitaram (supra), in Paragraph 22, it has been held as under :- "22. Shri Agrawal, learned Counsel for the applicant has cited various authorities in support of his argument but in view of the clear provisions of law as stated above, I need not burden this order with the discussion of the aforesaid authorities." In the case of Sitaram (supra), in Paragraph 22, it has been held as under :- "22. In relation to service under Order 5, Rule 17, Civil Procedure Code we have the further provision embodied in Order 5, Rule 19, Civil Procedure Code, it reads thus :- 'Where a summon is returned under Rule 17 the Court shall if the return under that rule has not been verified by the affidavit of the serving officer and may, if it has been so verified examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings and may make such further enquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit.' It is clear from the aforesaid provisions that before acting on the report of the serving officer where he has not verified his report by affidavit the law makes it obligatory on the Court to examine the serving officer or to get him examined by another Court touching his proceedings. The Court is also empowered to make such further enquiry in the matter as it thinks fit and it is specifically required that the Court shall then declare that summons has been duly served. Import of the expression 'duly served' is that service is in a manner as to give the defendant information of the proceedings against him. Before holding that there has been due service the Court must be satisfied that the provisions of Order 5, Rule 17, Civil Procedure Code were really complied with." Similar view has been taken by this Court in the case of Charanlal Patel (supra). 14. Before holding that there has been due service the Court must be satisfied that the provisions of Order 5, Rule 17, Civil Procedure Code were really complied with." Similar view has been taken by this Court in the case of Charanlal Patel (supra). 14. In the case of Stale of Jammu & Kashmir and others (supra), the Supreme Court, while interpreting the provisions of Section 239 of the Jammu and Kashmir Municipal Act, which makes the provisions of the Code of Civil Procedure applicable, has held that in cases of service of notice or summon by affixation the provisions of Order 5 Rule 19 of the Code of Civil Procedure should be complied with in the following terms :- "11. It cannot be and indeed it has not been disputed that notices were not served in accordance with the procedure prescribed for service of summons in the Civil Procedure Code. Even if we accept what Dr. Sighvi says that there was a refusal to accept the summons and that was the reason for effecting service by affixation the provisions of Order 5 Rule 19 of the Code were not complied with by the filing of an affidavit of the serving officer etc. All that has been pointed out by Dr. Singhvi is that the notices were produced along with the writ petitions which showed that they had been affixed to the premises and that in the writ petitions it was admitted that notices had been affixed on January 9, 1968 on the properties of the petitioners. We do not consider that any such averment dispensed with the requirement of the statutory provisions contained in Section 239 of the Municipal Act in the matter of service of notices." 15. In the case of The Commissioner of Income Tax, West Bengal 111, Calcutta and others (supra), the Supreme Court, while considering the provisions of Section 33-B of the Income Tax Act, which provides for service of notice by affixation has held that in the absence of disclosure of the name and address of the person who identified the place of business, the possibility of the officer serving notice having gone to a wrong place cannot be ruled out and, therefore, the service of notice has to be treated as not in accordance with law. In Paragraph 7, it has been held as under :- "7. In Paragraph 7, it has been held as under :- "7. Admittedly, the assessees have not been personally served in these cases. Therefore, we have to see whether the alleged service by affixation was in accordance with law. It is necessary to mention that, according to the assessees, they had no place of business at all. They claim that they have closed their business long before the notices were issued. Hence, according to them, Mr. Neogi must have gone to a wrong place. This contention of the assessees has been accepted by the Appellate Bench of the High Court. Bearing these facts in mind, let us now, proceed to consider the relevant provisions of law. Section 63 (1) of the Act reads :- 'notice or requisition under this Act may be served on the person therein named either by post or, as if it were a summons issued by a Court, under the Code of Civil Procedure, 1908 (V of 1908).' Rule 17 of Order V of the Civil Procedure Code reads :- 'Where the defendant or his agent or such other person as aforesaid refused to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.' (Emphasis supplied) As seen earlier the contention of the assessees was that at the relevant time they had no place of business. The report of the serving officer does not mention the names and addresses of the person who identified the place of business of the assessees. The report of the serving officer does not mention the names and addresses of the person who identified the place of business of the assessees. That officer does not mention in his report nor in the affidavit filed by him that he personally knew the place of business of the assessees. Hence, the service of notice must be held to be not in accordance with the law. The possibility of his having gone to a wrong place cannot be ruled out. The High Court after going into the facts of the case very elaborately, after examining several witnesses, has come to the conclusion that the service made was not a proper service. Hence, it is not possible to hold that the assessees had been given a proper opportunity to put forward their case as required by Section 33-B." 16. From a perusal of the record of the present case, it is clear that the serving officer sought to serve the summon of the suit on the defendant on 18-9-1985 on which date he has made an endorsement that the defendant was not available and, therefore, his wife who was residing with him, was sought to be served with the notice but she refused to accept the notice and, therefore, a copy of the notice was affixed on his house. However, though the name of one witness Ramsiya has been mentioned in the said notice, his address has not been stated therein nor has it been stated that the house was verified and identified by the witness. From the record, it is further clear that the officer serving the notice did not file any affidavit as required by Order 5 Rule 19 of the Code of Civil Procedure nor was he examined by the Trial Court which was necessary in the absence of such an affidavit. It is further apparent from a perusal of order sheets of the Trial Court that the Court has not complied with the requirements of Order 5 Rule 19 of the Code of Civil Procedure by declaring that the same has been duly served or examining as to whether some other mode of service was required to be adopted, but has simply stated that the notice was served in spite of which the defendant has not appeared and has thereafter proceeded ex parte against the defendant. Apparently, there is non-compliance of the provisions of Order 5 Rules 17 and 19 of the Code of Civil Procedure and in such circumstances the ex parte judgment and decree passed by the Court below and affirmed by the Lower Appellate Court deserve to be set aside. 17. In the circumstances, the appeal filed by the appellant stands allowed. The impugned judgment and decree passed by the Courts below are hereby set aside and the question of law framed by the Court is accordingly answered in favour of the appellant. The matter is remitted back to the Trial Court for adjudicating the same after giving due opportunity of hearing and adducing evidence to the appellant/defendant as provided am prescribed under the provisions of the Code of Civil Procedure. It is further directed that till the decision of the suits status quo, as it exists today, in respect of the disputed property, shall be maintained by the parties. 18. Looking to the fact that the matter is very old, it is directed that the parties shall appear before the Trial Court on 12th March, 2013 and on such further dates as ordered by the Court and the Court shall thereafter take up the matter and decide the same afresh as expeditiously as possible as the appellant and the respondents, both undertake to extend full assistance and co-operation to the Trial Court for an early decision in the matter. 19. In view of the aforesaid, the appeal filed by the appellant stands allowed accordingly.